Citation Nr: 9834168
Decision Date: 11/19/98 Archive Date: 01/06/99
DOCKET NO. 97-16 958A DATE NOV 19 1998
On appeal from the Department of Veterans Affairs Regional Office
in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a psychiatric condition,
to include undifferentiated schizophrenia and depression with
suicide attempts.
2. Entitlement to service connection for headaches.
3. Entitlement to service connection for the residuals of a lower
back injury.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The veteran had active military service from August 1978 to May
1984.
This matter came before the Board of Veterans' Appeals (hereinafter
the Board) on appeal from a March 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO), in St.
Petersburg, Florida.
Per 38 U.S.C.A. 7722 (West 1994 & Supp. 1998), the VA has an
obligation to inform individuals of their potential entitlement to
VA benefits when they meet the statutory definition of an eligible
veteran, and the VA is reasonably aware that said veteran is
potentially entitled to VA benefits. In this situation, the Board,
in reviewing the veteran's service medical record, believes that
the veteran may have suffered from a bilateral hearing loss, along
with tinnitus, while he was in service. He may now have the same
disabilities that may be related to his military service. If this
is found to be true, the veteran may be entitled to additional
compensation benefits. Thus, in accordance with 38 U.S.C.A. 7722
(West 1994 & Supp. 1998), the veteran is provided notice that he,
if he so desires, may apply for benefits.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran has not presented additional contentions.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1998), has reviewed and considered all of the
evidence and material of record in the veteran's claims file. Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that
the veteran has not presented a well-grounded claim for entitlement
to service connection for a psychiatric condition (to include
undifferentiated schizophrenia and depression with suicide
attempts), headaches, and the residuals of an injury to the lower
back.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained by the agency of original
jurisdiction.
2. The veteran's service medical records show treatment for back
pain of the neck and lower back.
3. The veteran's service medical records record complaints of and
treatment for headaches.
4. The veteran's service medical records do not reveal findings of
or treatment for a psychiatric condition, to include
undifferentiated schizophrenia or depression.
5. Post-service medical records do not show treatment for lower
back pain and headaches.
6. Since 1991, the veteran has been diagnosed as suffering from
undifferentiated schizophrenia. He has attempted suicide on many
occasions and occasionally experiences depression.
7. Medical evidence etiologically linking the veteran's current
psychiatric problems and conditions with his military service have
not been presented.
CONCLUSIONS OF LAW
1. The claim for entitlement to service connection for a
psychiatric condition, to include undifferentiated schizophrenia
and depression with suicide attempts, is not well-grounded. 38
U.S.C.A. 1101, 1110, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R.
3.303 (1998); Edenfield v. Brown, 8 Vet. App. 284 (1995) (en banc).
2. The claim for entitlement to service connection for headaches is
not well-grounded. 38 U.S.C.A. 1101, 1110, 5107(a) (West 1991 &
Supp. 1998); 38 C.F.R. 3.303 (1998); Edenfield v. Brown, 8 Vet.
App. 284 (1995) (en banc).
3. The claim for entitlement to service connection for the
residuals of a lower back injury is not well-grounded. 38 U.S.C.A.
1101, 1110, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. 3.303
(1998); Edenfield v. Brown, 8 Vet. App. 284 (1995) (en banc).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under 38 U.S.C.A. 1110, 1131 (West 1991 & Supp. 1998), compensation
will be provided if it is shown that the veteran suffers from a
disease or injury incurred in or aggravated by service. In
addition, service connection may be granted for any disease
diagnosed after discharge, when all of the evidence, including that
pertinent to service, establishes that the disease was incurred in
service. 38 C.F.R. 3.303(d) (1998). Yet, before a determination is
made on the merits of the claim, it must be decided as to whether
the veteran's claim is well-grounded.
A well-grounded claim requires more than mere allegations; it must
be plausible and with merit. 38 U.S.C.A. 5107 (West 1991 & Supp.
1998); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Murphy v.
Derwinski, 1 Vet.App. 78 (1990). For a claim to be well-grounded,
there must be:
(1) a medical diagnosis of a current disability;
(2) medical, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between an in-service injury or
disease and the current disability.
See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d
604 (Fed. Cir. 1996) (table). Where the determinative issue
involves medical causation, competent medical evidence to the
effect that the claim is "plausible" is required. See Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993).
Where such evidence is not submitted, the claim is not well-
grounded, and the initial burden placed on the veteran is not met.
See Tirpak v. Derwinski, 2 Vet. App. 609 (1992).* Moreover, if a
claim is not well-grounded, then the Secretary no longer has a duty
to assist a claimant in the developing of the facts pertinent to
the claim. 38 U.S.C.A. 5107 (West 1991 & Supp. 1998); Gilbert v.
Derwinski, 1 Vet.App. 49, 55 (1990).
The question of whether or not a claim is well-grounded is
significant because if a claim is not well-grounded, the Board does
not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6
Vet. App. 14, 17 (1993). In this regard, the Court has observed
that the statutory prerequisite of submitting a "well-grounded"
claim "reflects a policy that implausible claims should not consume
the limited resources of the VA and force into even greater backlog
and delay claims which--as well-grounded--require adjudication....
Attentiveness to this threshold issue is, by law, not only for the
Board but for the initial adjudicators, for it is their duty to
avoid adjudicating implausible claims at the expense of delaying
well-grounded ones." Grivois v. Brown, 6 Vet. App. 136, 139 (1994).
Evidentiary assertions by the veteran must be accepted as true for
the purposes of determining whether a claim is well-grounded,
except where the evidentiary assertion is inherently incredible or
when the fact asserted is beyond the competence of the person
making the assertion. See Robinette v. Brown, 8 Vet. App. 69, 75-76
(1995); King v. Brown, 5 Vet. App. 19, 21 (1993).
Where the issue is factual in nature, e.g., whether an incident or
injury occurred in service, competent lay testimony, including a
veteran's solitary testimony, may constitute sufficient evidence to
establish a well-grounded claim under [38 U.S.C.A. ] 5107(a). See
Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the claim
is "plausible" or "possible" is required. See Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Furthermore, Congress specifically limits
entitlement for service-connected disease or injury to cases where
such incident has resulted in a disability. See 38 U.S.C.A. 1110
(West 1991 & Supp. 1998). In the absence of proof of a present
disability there can be no valid claim." Brammer v. Derwinski, 3
Vet. App. 223, 225 (1992). Considering these criteria, the veteran
has not met his statutory burden of submitting evidence of a well-
grounded claim for service connection for a mental disorder,
headaches, and a lower back disability.
I. Headaches and Lower Back Disability
The Board observes that the appellant apparently is of the belief
that he is entitled to some sort of benefit simply because he had
a disease or injury while on active service. That, of course, is
mistaken. The Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents have
resulted in a disability. The Board acknowledges that while he was
in service, the veteran suffered acute and transitory injuries to
his back. He also suffered from headaches.
However, shortly before his discharge from service in 1984, he
underwent a discharge physical. SF 88, Report of Medical
Examination, May 7, 1986; see also SF 93, Report of Medical
History, May 7, 1986. Neither headaches nor any type of back
disability or condition was noted on the examination.
Seven years later, when the veteran submitted his first claim for
VA benefits, the veteran did not complain of nor did he request
service connection for headaches or a lower back disability. His
first mention of such disabilities occurred in September 1996 - ten
years after his discharge from the US Army. Since service, per the
medical records in the claims folder, the veteran not received a
diagnosis of chronic headaches or a disability/condition of the
back. Given the lack of clinical evidence that the veteran now
suffers from headaches and lower back disability, the Board finds
that the veteran has not presented a well-grounded claim in
accordance with Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Rabideau stands for the principle that in order for service
connection to be granted a current disability must be present. If
a disability does not presently exist, then the claim will not be
plausible, and thus, not well-grounded.
In this instance, there are only his statements in support of his
claim. The record does not confirm the presence of the claimed
disabilities. Mere contentions of the veteran, no matter how well-
meaning, without supporting evidence, do not constitute a well-
grounded claim. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994);
King v. Brown, 5 Vet. App. 19 (1993). In other words, in the
absence of proof of a present disability there can be no valid
claim. 38 U.S.C.A. 1110 (West 1991 & Supp. 1998); Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the claim of
entitlement to service connection for headaches and a lower back
disability is not well-grounded and the claim is denied. Edenfield
v. Brown, 8 Vet. App. 384 (1994) (en banc).
II. Psychiatric Condition
The post-service medical records reveal that the veteran has
undifferentiated schizophrenia. They also show that he occasionally
suffers from depression and he has tried to commit suicide on
numerous occasions. The appellant claims that these psychiatric
conditions are somehow related to or began while he was in the
military. The medical records do not show a diagnosis of a mental
condition until 1991 - seven years after the veteran's discharge
from the military. Because the service medical records do not
reveal treatment for or findings of a mental condition, and without
evidence to the contrary, the Board must conclude that a
psychiatric condition/disability did not exist while he was in
service.
In conjunction with his claim, the veteran submitted copies of
post-service medical treatment records, variously dated, showing
treatment for his psychiatric disability. While these records do
disclose treatment for a mental condition, they do not
etiologically link the veteran's current psychiatric condition with
his military service or any incidents therein.
For a claim to be well-grounded, there must be competent medical
evidence of a current disability, the occurrence of a condition or
disability while in service, and a nexus between an inservice
injury or disease and a present disability. Caluza v. Brown, 7 Vet.
App. at 506. Although the veteran maintains that his mental
condition is related to his military service, the only evidence to
support his claim that it is somehow related are his assertions.
Competent medical evidence has not been submitted demonstrating
that his current psychiatric condition is related to his military
service or any inservice occurrence or event. Mere contentions of
the veteran, no matter how well-meaning, without supporting medical
evidence that would etiologically relate his mental disorder with
his service do not constitute a well-grounded claim. Caluza v.
Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359
(1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v.
Brown, 5 Vet. App. 19 (1993); Espiritu v. Derwinski, 2 Vet. App.
492 (1992) (here the determinative issue involves medical causation
or a medial diagnosis, competent medical evidence to the effect
that claim is "plausible " or "possible" is required.). Therefore,
the claim of entitlement to service connection for a psychiatric
condition, to include undifferentiated schizophrenia and depression
with suicide attempts, is not well-grounded and the claim is
denied. Edenfield v. Brown, 8 Vet. App. 384 (1994) (en banc).
III. Representative's Statement
The veteran's representative has asked that the Board remand the
case if it is determined to be not well-grounded for the RO to
undertake development pursuant to the Veterans Benefits
Administration Adjudication Procedures Manual, M21-1. The Board is
bound in making its determinations by applicable statutes,
Department regulations, and the precedent opinions of the General
Counsel of the Department. 38 C.F.R. 20.101(a) (1998). However, the
Board has no jurisdiction to adjudicate a claim that is not well-
grounded. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). There is no
duty to assist further in the development of this claim, because
such additional development would be futile. See Murphy v.
Derwinski, 1 Vet.App. 78 (1990). Nothing in the record suggests the
existence of evidence that might establish well-grounded claim for
service connection for headaches, the residuals of a lower back
injury, and for a psychiatric condition, to include
undifferentiated schizophrenia and depression with suicide
attempts. 38 U.S.C.A. 5103(a) (West 1991 & Supp. 1998); see Epps v.
Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69
(1995). Accordingly, the Board declines to remand a claim that is
not well-grounded for further development by the RO.
ORDER
1. Entitlement to service connection for a psychiatric condition,
to include undifferentiated schizophrenia and depression with
suicide attempts, is denied.
2. Entitlement to service connection for headaches is denied.
3. Entitlement to service connection for the residuals of a lower
back injury is denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1998), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988).
The date which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by the
Board of Veterans' Appeals.
* Pursuant to 38 U.S.C.A. 5107 (West 1991 & Supp. 1998), and
subsequently Tirpak v. Derwinski, 2 Vet. App. 609 (1992), a well-
grounded claim requires more than just a mere allegation. In
Tirpak, the United States Court of Veterans Appeals (Court), held
that the appellant in that case had not presented a well-grounded
claim as a matter of law. The Court pointed out that ". . . unlike
civil actions, the Department of Veterans Affairs (previously the
Veterans Administration) (VA) benefits system requires more than an
allegation; the claimant must submit supporting evidence." Tirpak,
2 Vet. App. at 611.